Standing Committee E

Part II

[Mr. John Maxton in the Chair]

Health and Social Care Bill

[Continuation from column 434]

On resuming—

John Maxton: The Minister was about to respond to an intervention from the hon. Member for Sutton and Cheam.

Hon. Members: Where is he?

John Hutton: I am sad to say that the hon. Gentleman is not here, so I shall continue with the speech that I was making before we were interrupted. During our debate, several specific issues were raised that I would like to refer to before we move on to the substantive issues of principle behind some of the amendments.
 The hon. Gentleman—I hope that he will be able to shine some more light on the issue when he returns—drew our attention to incidents in which residents in care homes had been charged for services provided by general practitioners. GPs have no basis on which to charge for those services. The National Health Service Act 1977 makes it clear that NHS services are free of charge, so there is no provision enabling charges to be made for GP services in care homes. 
 I understand that the voluntary organisation that sponsored the report mentioned by the hon. Gentleman drew the problem to the attention of my officials some weeks ago. My officials asked for a copy of the report, so that the specific examples and quotations could be investigate, but we have yet to receive it. I would be grateful if the hon. Gentleman sent me a copy, so that I could make necessary inquiries to find out what has happened in individual cases. There is no basis for charging for those services and if it is taking place we must get to the bottom of it as soon as possible. 
 The hon. Member for Runnymede and Weybridge made several comments about alternative ways to fund long-term residential care, including the possibility of long-term care insurance. I understand that the hon. Member for West Chelmsford was a strong supporter of the previous Government's partnership proposals for such insurance, and was a Minister when the right hon. Member for Charnwood made them. 
 I am sure that I will be corrected if I am wrong, but I think that the Leader of the Opposition announced last year that a future Conservative Government would match insurance at a rate of 50p in the pound. However, the 1997 proposals suggested matching insurance pound for pound.

Simon Burns: I should clarify the matter for the Minister. I feel slightly at a loss, because presumably civil servants from the Department of Health—they may be present—have briefed him on it. I am working from memory, but I think that our White Paper gave two options, and we never decided which option to take for matching as consultation was under way when the general election intervened.

John Hutton: That is an intriguing flash of memory from the hon. Gentleman. I have no reason to doubt that his memory is faultless. It is not usual for White Papers to be the subject of consultation, as I am sure that he knows from his experience in government. However, I am happy to accept that there were two options.

Simon Burns: The consultation may have been internal. We published the White Paper, but we never gave a definitive answer on exactly what the matching would be, as we would not have needed to do so before we introduced the legislation. That was always going to be after the general election, as we were up against the buffer of having been in government for five years.

John Hutton: Quite. If that is the explanation, it is becoming even more tortuous. The hon. Gentleman said that his party could not make a definitive announcement until detailed legislation had been prepared, but the principle of the detail of legislation is outlined in White Papers. That is the reason for publishing White Papers.
 The point that I am making does not require us to explore that line of argument any further. I am, however, interested in exploring the idea that, as I think the hon. Member for Runnymede and Weybridge said, the proposals in question have not been bettered. It strikes me that the Conservative party's proposal to match 50p in the pound was better. The proposals on long-term care insurance that have been mentioned in this debate look slightly ragged in the light of events and the possible explanations of what happened in the past. 
 The hon. Member for Runnymede and Weybridge quite reasonably chose—as I should have done in his shoes—not to dwell on the fact that the royal commission took a long, careful look at his party's proposals. Rather embarrassingly for him and his right hon. Friends it dismissed them in a sentence as confusing and as failing to make it clear who would benefit from them. We do not need to detain the Committee much longer in consideration of the so-called alternatives to what we are discussing.

Philip Hammond: Will the Minister give way?

John Hutton: In a moment.
 We have carefully studied the regulation of long-term care insurance products. It makes sense to consider the opportunities that those can provide to some people. However, it is false to pretend that the proposals of four years ago offer any meaningful or relevant method to enable most people to fund their long-term care costs.

Simon Burns: Why?

John Hutton: For the obvious reason of expense. The people about whom we are concerned today are on low or modest incomes. Even the hon. Gentleman is unlikely to claim that his modest proposals would open the floodgates and enable hundreds of thousands of people to take up care insurance. The best that we can say is that they could make a marginal impact. However, the fundamental issues that we have been considering would remain untouched.

Philip Hammond: I take issue with the use of the word ``alternative''. I did not suggest that it was necessary to explore the ideas in question as alternatives. I pointed out that rising wealth and home ownership would lead to more and more people being affected by the means test and having to contribute to their long-term care. In addition to pursuing the policy that they have presented to us, the Government should actively encourage and assist people to plan and prepare to make a contribution to their long-term care costs, as it is envisaged they will still do under the Bill. Those arrangements would be as well as, not instead of, what is in the Bill.

John Hutton: I am grateful for that alternative, but what other detailed proposals did the hon. Gentleman and his party outline to make the funding arrangements for long-term care more equitable? There were none. The proposals were a state subsidy for long-term care insurance. Perhaps now the Conservative party adopts a more expansive view about how we should tackle such issues. I welcome that progress. However, it would not be fair to say the proposals that we have been discussing were not meant to be the solution to the problems identified by the Conservative Government.
 A wider issue underpins much of today's discussion and it concerns the overall method of funding social services generally. We have outlined proposals in the NHS plan for funding a new range of health and social care services, which we think will better meet older people's needs. That is the right way to deal with the problems of older people. There are not enough of the right kinds of services—health and social care—available at the right time and place when older people need them so that they can live independently at home, among their friends and families, for longer. We should all want that, given the choice. 
 The services in which we intend to invest in the next three years will be a mixture of health and social care services. It is important for the Committee and our wider audience to have a clear idea of what may happen in the next few years, but important to those considerations will be the key positions adopted by the parties and their ability to sustain and fund investment in health and social care services. We heard from the Liberal Democrats—we would expect them to take that view. With the greatest respect to the hon. Member for Isle of Wight, his party wants all of that money to be spent and then, ``Please, Sir!'', it will want more. It wants an extra £1 million— 
 Sitting suspended for a Division in the House. 
 On resuming—

John Hutton: I was about to make a point about the funding of the extra health and social care services that the Government would like to develop over the next three years. I shall also explain our position on the funding of the long-term care of the elderly. We have made the choice not to proceed with universal free personal care, but to make an equivalent investment in new health and social care services for older people. Underpinning that investment will be a range of new social services for older people. It will be funded through the extra investment identified in the NHS plan and the expanding resources that the Government have committed to improve social services.
 This year, £9.3 billion will be made available for personal social services. In 2001-02, that figure will increase to £9.85 billion, and in 2002-03 it will be £11 billion. It is important for the Committee and for those interested in our proceedings and in the well being and welfare of older people to know whether that additional spending would be met by an incoming Conservative Government—should such an event occur. We have tried repeatedly to obtain an assurance from the Opposition that our commitment to spend £9.85 billion on social services next year, and £11 billion the year after, would be honoured by a future Conservative Government. We have received no answer that question. We have received no assurance that the spending would be matched by a future Conservative Government.

Philip Hammond: The Minister and his hon. Friends have tried that one a number of times. He knows very well that he is asking a spurious question. Some £2.7 billion of the £11 billion to which he refers will be in the form of ring-fenced grants from the Department of Health. The Opposition have given a clear commitment to match the Department of Health spending totals that the Government have set out in the comprehensive spending review. The remainder is local authority spending. The Minister cannot tell me how much local authorities will spend in any given year. He cannot even tell me how much my local county council will spend on social services. I cannot tell him. The county councils themselves do not yet know that, so the question is therefore spurious.

John Hutton: The hon. Gentleman would say that, wouldn't he?

Simon Burns: It is the right answer.

John Hutton: Unfortunately, it is not the right answer. The present Government are committed to that level of spending on social services, which will sustain the increased investment in social care services for older people. We have made that commitment, and we will honour it.

Simon Burns: The Minister says that the Government will honour the total spending. How can the Government realistically give such a commitment if so much of that spending is dependent on what local government may spend in future. No one, not even local authorities, knows what will be spent next year, the year after next or beyond.

John Hutton: The hon. Gentleman has obviously forgotten a lot about such matters since he left Government.

Simon Burns: Why?

John Hutton: I really do not know why he has forgotten. That is for the hon. Gentleman to explain. The Government are making available those resources for social services spending, and that money will sustain the investment in new health and social care services for older people.

Peter Brand: We will fund it.

John Hutton: Of course, the Liberal Democrats promise to fund everything from that same penny on income tax. If they ever have the chance to do so, we will watch with interest how that money is recycled around the system. The hon. Gentleman is welcome to be my accountant if he thinks he can spend so much extra money from the same source.
 The hon. Member for Runnymede and Weybridge was ducking and diving when I asked him whether an incoming Conservative Government would meet our commitment to invest in social services. The hon. Gentleman whines on about a social services standards vetting system, but that is not the point. We have made it clear that we will make the money available for social services. Would he do the same?

Philip Hammond: How does the Minister propose to make that money available for social services? Although I do not claim to be an expert on local government funding, my understanding is that about a quarter of it is in the form of ring-fenced grants from his Department and the remainder is part of local authority funding. Local authorities must decide their own priorities in respect of education, social services and so on. Admittedly, they have strong guidance from Government policy announcements, but the money is not ring-fenced. If I am wrong, perhaps the Minister will correct me. Will he also acknowledge that local authorities in aggregate are spending in excess of the SSA for social services?

John Hutton: With great respect, the hon. Gentleman is missing the point. Of course he is right to say that local authorities decide how to use the money. However, he is refusing to be drawn upon my other point. I have given him three opportunities to confirm whether the Conservative party, if it were elected, would make available the equivalent level of resources.

Philip Hammond: For social services?

John Hutton: Yes. Will he make that level of resources available to local government? We are waiting for the answer. Unless his answer is a clear yes, we are entitled to conclude that he will not make such a commitment.

Philip Hammond: With the greatest of respect to the Minister, it is no good him trying to read into the record something that is not there. As he well knows, he is asking a question to which there is no answer, because the money that is allocated to local government, whether it comes from RSG or from locally raised resources, is not ring-fenced for specific purposes. The Minister can chunter on—to use his expression—all he likes about SSA for social services. Local authorities see the money available to them as a single pot, from which they will set their own priorities. Neither he nor I can predict what local authorities will spend on social services.

John Hutton: I wonder why, if that is the case, the hon. Gentleman and his hon. Friends have committed themselves to matching our spending on education. It strikes me that the hon. Gentleman's fox has been shot. I leave others to draw the appropriate conclusions. He knows that he is in a difficult position.

John Maxton: Order. I quite enjoyed that, and it will make good television in the run-up to the election, but it does not have a great deal to do with the amendment.

John Hutton: It is a great pleasure to have my wrist slapped by you, Mr. Maxton. That, too, may be a subject for another sort of debate. I am sure that you are right—it will make good television in the election, because we want to make it clear to people that, like previous Conservative Governments, the Opposition would hit social services spending. We know from our experience that, as night follows day, those who are least well off would suffer the most from the return of Conservative rule.
 I am happy to move on from that issue, because we have explored it fully. I would like to return to the principle behind the amendments, and deal with the various points that have arisen. Each amendment seeks to widen the definition of the care that the clause prohibits local councils from providing. Although many of the amendments are not explicit about who should take on the responsibility of providing the care, the implication is that the NHS should do so and that the care should be provided free to users. 
 The Government have chosen to spend the available resources on improving the quality and the range of services provided for older people and people with disabilities. Those services will help people regain as much independence as possible, will support them in their own homes. They are tailored to people's needs, not to those of the organisations that provide them. Personal care is currently provided on a means-tested basis, which means that seven out of 10 people in residential accommodation receive all or some of their personal care free. 
 We are making other changes, such as raising the capital limits at which people become eligible for the means test, and disregarding the value of the person's home for the first three months of residential accommodation. The moderately well off will have more of their care paid for from the public purse. We agreed that we should end the anomaly that only people in nursing homes could be charged for the care that they received from a registered nurse, which would be free through the NHS in any other setting. That is the purpose of clause 48. 
 It would cost more than £1 billion a year to make personal care free to everyone in every setting—a large investment that I am not convinced would do anything to improve front-line health and social care services. The cost would rise steeply in future years. Nobody would receive a better service. That proposal would lock in place the existing, inadequate services that older people currently receive. Not one extra person would be helped to stay in his or her home or to receive a piece of equipment that would transform his or her ability to cope at home. The services would not be extended so that more people could benefit from a greater range of better services. 
 I accept that there is a difficult choice for our society, but we have chosen to invest the available resources in fundamentally changing the way in which our care system supports older people. It may be difficult for the Liberal Democrats to grasp this point, but given that we cannot spend the same money twice, investing in free personal care would happen at the expense of our objectives for a better range of improved services. We chose investment in new intermediate care services, which will help 130,000 people a year to regain their independence or avoid going into hospital for essential care. Investing in home care services and equipment will help 50,000 more people remain independent in their homes, and investing in new carers respite services will benefit 75,000 carers and those for whom they care. The Government believe that those are the right choices. 
 I want to turn briefly to some of the amendments that have been discussed tonight, particularly amendment No. 309. Many of the amendments seek to enlarge the range of services that councils cannot provide but without imposing a duty on any other body. The NHS, as I mentioned earlier, can and does provide services ancillary to NHS services under its continuing care responsibilities, when there is a need for high-level health and nursing care. As the hon. Gentleman will be aware, the NHS is not obliged to provide that support in settings when there is no need for those higher levels of NHS care. 
 Amendment No. 287 seeks to add to the care that cannot be provided by a local council so that a council cannot provide care for certain illnesses or conditions. Why should a diagnosis make the difference to the way in which people with identical care needs are treated? I do not understand the logic behind that. 
 Amendment No. 288, tabled by my hon. Friend the Member for Lancaster and Wyre, would extend the care that councils cannot provide to those with certain conditions beyond the care provided by a registered nurse. I hope that I have already dealt with the difficulties of deciding which organisations can provide care based on diagnoses. I do not think that that is a sensible way for us to proceed. 
 Amendments No. 307 and 309 add 
``any services usually or routinely of a type provided by a registered nurse'' 
to the definition of nursing care. I have to ask what that means. A nurse is not defined by the tasks that she or he performs, but by skills and expertise. She may take someone to the toilet, not because no one else could help that person to the toilet, but because, while doing that task, she might be able to monitor the person's mobility, communication or continence, and to make judgments about the care that that person needs. In our definition of nursing care by a registered nurse, those things would be included. But taking someone to the toilet would not come under the definition of services include in the amendment, which would mean that some services could not be provided by local councils to people in residential homes or their own homes.

Philip Hammond: By taking apart the attempts other members of the Committee to put in place a definition, the Minister is merely is underlining the difficulty of creating a definition of the demarcation between nursing and personal care. Would the Minister address himself to that point as it relates to the example that he has just given? How does it relate to the situation in which a nurse normally provides certain care to a resident and that nurse is off sick? There may be no other staff available, and a care assistant may provide the care on a particular day or evening. Is the Minister seriously telling me that something could be nursing care, paid for by the NHS, on a Monday, while on the Tuesday it might not be categorised as such simply because the person who temporarily provides it is different?

John Hutton: That is quite an interesting example. I would like to have some time to reflect on what that might mean in practical terms. We do not want that type of situation to arise because that would be arbitrary and unreasonable. The example that I gave showed that our definition, which the hon. Gentleman has criticised, is more generous than that which he is offering.
 The hon. Gentleman asked me the general question of whether we can distinguish between nursing and personal care in a sensible and practical way. There are disagreements in the Committee about that. I have the greatest of respect for members of the Committee and others who have expressed doubt about whether we can make that distinction workable and practicable, but I simply ask them to read what the royal commission said. We frequently hear the royal commission cited and prayed in aid of to one argument or another. Sometimes members cherry-pick their way through the royal commission to find the argument most suitable for their case. Those who say that that distinction cannot be made should read what the royal commission said, and examine at paragraph 626 of the report. 
 It is a matter of record, as I said last night, that the royal commission wanted free universal personal care, and that, obviously, was the main recommendation that it made to the Government. The royal commission also made it very clear that if we decided not to proceed with that recommendation, the introduction of free nursing care would be a worthwhile objective, and the nursing care to which it was referring was nursing care provided by a qualified nurse. 
 I challenge hon. Members' belief that that distinction cannot be made. When community nurses visit sick and elderly people at home, who are also receiving community care services, the distinction between nursing, which is NHS-funded, and personal social services, which are means-tested, is made every day up and down the country. Such distinctions are being made even as we speak.

Peter Brand: The Minister keeps praying in aid for his proposals the royal commission. However, his proposals concern state registered nurses. The royal commission talks about the skills of a qualified nurse. We may have restricted the registration of nurses and the recognised qualifications for registration of nurses. We used to have state enrolled nurses, who did a remarkable job, but that role is no longer available. There is now a move to create a new body of NHS personnel, who will take over some of the roles that the traditional enrolled nurse used to fill. That nurse was qualified, even though she or he was not registered.

John Hutton: I give the hon. Gentleman full marks for his bravery in attempting to make that argument. However, we tried to take into account the recommendations of the royal commission. It talked about the time devoted by a qualified nurse, and that is precisely what we have done in the Bill. The hon. Gentleman is clutching at straws. His argument is insubstantial.
 The hon. Member for Runnymede and Weybridge asked whether the distinction could be made. Of course there are difficulties: I do not pretend otherwise. That is always so with boundary issues, but the Liberal Democrats' proposals would throw up equally difficult boundary issues that would have to be arbitrated on and adjudicated at some point if they were ever put into practice. That would also create a difficulty in Scotland, which is why the Scottish Executive, instead of examining the royal commission report and deciding on its course of action, are revisiting the issue of the definition of personal care, an issue that is not problem-free. 
 It is desperately important not to pretend that the free personal care option is problem-free. There is a real danger in the way the Liberal Democrats—in Committee today and on the Floor of the House yesterday—have tried to present free personal care as a problem-free zone that will transform the whole basis of the system. It will not.

Paul Burstow: Of course it would be wrong to present any question around definitions as problem-free, as the debates today and last night demonstrated. I apologise to the Minister for not having been here to hear his response to my earlier intervention, although I gather that he did not actually respond. May I, therefore, put my question again? [Hon. Members: ``Oh no.''] My question was about definitions, and since the Minister has mentioned that in debate, I want to come back to it.
 The Minister's definition specifies registered nurse time. He has said that things that nurses would not normally do are not included. That must mean that a list of tasks will exist. Will that be included in guidance? Where can we find that list?

John Hutton: The hon. Gentleman is wrong. I made it clear that the clause, as we have drafted it, does not involve a list of tasks. That is clear to anyone who reads the clause.
 The point before us fundamental. Amendments Nos. 301 and 303, to which the hon. Gentleman attached great importance, go right to the quick. They are intended to provide universal free personal care. I will not quibble about the wording of the amendments, which would be a pointless waste of everyone's time. However, the issue of whether personal care should be universally free is complex, and we cannot achieve free care without making difficult choices about public expenditure in other areas. 
 The hon. Gentleman will not like my next point either, but Liberal Democrats do not make hard choices. They want what we are spending, and then they want more. They offer vague and, in this case, rather absurd methods of funding spending. The official Liberal Democrat health spokesman told us yesterday that the Liberal Democrats plan to fund the initiative by increasing the top rate of income tax, and that has been confirmed again tonight. Are those who pay that not the very people who will benefit from free personal care? [Laughter.] Well, that takes us the hub of the issue. Those who are currently means-tested will get their free personal care, but they will pay more taxes in order to receive it. At some point the hon. Gentleman and his friends must explain how that in any sense represents a benefit for those at the top rate of income tax.

Peter Brand: Does the Minister not accept that it is right to distribute wealth to make sure that people are covered at their times of need, irrespective of how well off they are? We are talking about providing the same services to everyone, wealthy or poor, but also about making sure that the rich pay more, because they can afford to. That is a good socialist principle, which I thought that the Minister—being of the old Labour tradition—would have accepted.

John Hutton: It would be interesting to have an argument with the hon. Gentleman about socialism, but this is probably not the occasion for that debate. I have followed the debate, but it has not been explained to me, or justified to anyone, that the proposal to make universal personal care free is an aspect of wealth redistribution.

Peter Brand: It is care redistribution.

John Hutton: I do not accept that. The argument has gone round and round. The people to whom the hon. Gentleman would extend free personal care are those who have sufficient means to make a contribution to their care. To extend free personal care to those people, and then increase their income tax, would be absurd, but that is the position that the Liberal Democrats have taken. I look forward to hearing some further explanation in due course.
 We have had a long debate, and we have probably come to the end of it—at least for tonight. I ask my hon. Friends not to accept the amendments, for the reasons that I have outlined. The choices that we have made, and which I ask my hon. Friends to support and endorse are right for the people of our country. They adhere strictly to the principles of social justice and health equality, which are paramount objectives of this Government. They prioritise investment in exactly the right areas. 
 All my hon. Friends will have met people in their constituencies who complain about the inadequate range of existing health and social care services. People feel that they are not offered enough choice on how longer they can stay at home before they go into institutional care. We all agree that the objectives of additional public spending in those areas should be to promote the independence of older people, to avoid unnecessary institutional care and to give old people what they want. I know they want, because they tell me. They want the opportunity to spend more time at home and to live longer healthier lives. That has to be right. That is our priority, and those are the principles that I ask my hon. Friends to embrace tonight.

Paul Burstow: We have had a thorough debate of the issues before us. I shall want the Committee to divide later on amendment No. 300, because we believe that it is very important. We are not in any way convinced by the arguments and rhetoric of the Minster, and wish to press that amendment to a vote.

Philip Hammond: In the last moment or two of his speech, the Minister managed, ingeniously, to cover ground without once mentioning or implying the involvement of the Treasury in the internal discussions that he and his colleagues will have had. We have saved ourselves the trouble of a clause stand part debate, by dealing with the issue of principle, as well as the narrower focus of the amendments. While the debate has been long, it has not been even-tempered, in so far as it touched on issues of principle.
 On the amendments, I hope that the Minister would accept—notwithstanding the fact that he has not been persuaded to accept any of the amendments—that real issues are being debated, rather than philosophical divisions. The amendments—at least those tabled by Conservative Members—are based on an understanding that the Government have chosen the path down which they will go. We have considered that, and have tried to enhance and improve the working definitions that will be of great practical importance to tens of thousands of people. 
 The Minister comprehensively sought to demolish alternative definitions offered from various parts of the Committee. He reasserted his view that nursing care by a registered nurse is the correct definition. I can swallow the logic of that definition only if the Minister tells the Committee that the only care that will be covered is care that only a registered nurse can provide legally or in accordance with regulations. If we are talking about any care that can be provided properly by a registered nurse or health care assistant, the Minister must answer our questions. I gave an example, but he said that he wanted time to reflect on it. 
 It sounds absurd, but if a nurse performs a task five days a week, I would describe that task, in the words of amendment No. 308, as 
``usually or routinely of a type'' 
carried out by a nurse. That nurse may be sick or unavailable, or the manpower situation in the area may be such that there are simply not enough nurses to go around. Is the Minister seriously saying that the task cannot be performed on a Saturday night by a health care assistant and still fall within the definition?

John Hutton: I have had time to reflect. The hon. Gentleman is familiar with the proceedings on the Care Standards Act 2000, so he will be aware that it is a condition of registration for someone who runs a nursing home that he should provide adequate nursing care at all times. If a nursing home fails to do so, there will be a problem with its registration. The person who runs the nursing home is responsible for ensuring that adequate nursing care is available at all times.

Philip Hammond: I must ask the Minister to take a little trip from the fantasy world where Health Ministers live to the real world, where people have great difficulty in recruiting and retaining staff and where people get flu and go off sick. Is he suggesting that frail, elderly people should be left lying unattended on a bed because the registered nurse whom the Bill insists should be provided by the home's owner to look after them is not there?

John Hutton: Of course I am not suggesting that. It is the responsibility of the person who runs the nursing home to make available suitable nurse cover to meet the assessed needs of the home's residents. Any difficulties should be addressed by, for example, the employment of bank nurses.

Philip Hammond: I understand the Minister to be saying that the absurd example that I gave could actually happen. If a care assistant undertakes a task, perhaps under the supervision of a nurse who is unavoidably dealing with another urgent situation, the task would have to be paid for and would be subject to the means test of the person receiving the care. That seems even more absurd than some of the other scenarios that we have outlined. When the Minister thinks about that example, he must agree that that is not the right way to go.
 I entirely accept that there might be difficulties in defining care 
``usually or routinely of a type'' 
provided by a registered nurse and that such care must be defined in a precise legal way. However, we all know what we mean by that, even if we might have difficulty in writing it in a Bill. 
 I hoped that the Minister would at least concede that, if the care that was normally provided by a nurse was, in a particular instance and for a particular reason, provided by a health care assistant under a nurse's supervision, he would not penalise the recipient of the care. The Minister seems not to acknowledge that there might be different practices or ways of working for perfectly proper reasons and that one size does not fit all in the delivery of care. There might be tasks that are dealt with in one county, town or care home by a nurse, but which are routinely dealt with elsewhere by a health care assistant. The Minister seems not to recognise that the availability of nurses varies significantly between different parts of the country. As he and his colleagues must know, the pressures on the available supply of qualified registered nurses are intense. 
 The definition that we seek to write into the Bill represents a practical attempt to probe the Minister on his definition's workability. We are not seeking to expand it in a way that would lead to uncontrolled budget problems, which I am sure lie at the back of the Minister's mind, but are considering at the practical circumstances in which people work, and at situations in which health care assistants provide much care under the direction of registered nurses. We are thinking of a labour market that is very difficult in many parts of the country and asking the Minister to take a slightly more pragmatic approach and ensure that we do suffer unintended and perverse effects by forcing care home owners to hire nurses, agency nurses or bank nurses who are desperately needed elsewhere in NHS hospitals so that they carry out tasks that could be performed perfectly adequately and safely by health care assistants. 
 The Bill could result in charging an individual who would otherwise receive care free of charge. That would be the worst possible outcome for the individual, the care home providers, the NHS and the wider health care economy. I am disappointed that the Minister has made no gesture towards recognising that there is a problem with the definition that he has proposed, since it is based on who performs a task, rather than defining what the task is. The definition makes no recognition of regional variations or local labour market variations, and it will lead to a great deal of trouble when the Government try to implement it. 
 Members have tabled amendments to express their concerns, not about the principle, but about the workability of the Governments' proposals and I hope that they will join me in asking the Minister, through a vote on amendment No. 306, to think very carefully about his definition before we reach Report. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived. 
 Amendment proposed: No. 298, in page 42, line 42, leave out from `care' to end of line 6 on page 43, and insert, 
``or health care within the meaning of subsection (2)''.—[Mr. Burstow.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 2, Noes 9.

Question accordingly negatived. 
 The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
 Clause 48 ordered to stand part of the Bill.

Clause 49 - Preserved rights: transfer to local authorities of responsibilities as to accommodation

John Hutton: I beg to move amendment No. 226, in page 43, line 16, leave out from beginning to `is' in line 17 and insert—
 `(1A) For the purposes of this section a ``qualifying person'' is—
(a) (in relation to any time before the appointed day) a person to whom section 26A(1) or section 86A(1) applies; or
(b) (in relation to any later time) a person to whom either of those sections applied immediately before that day.
 (2) Where a qualifying person'.

John Maxton: With this it is convenient to take Government amendments Nos. 267 and 268.

John Hutton: The amendments will ensure that local authorities are under a duty to identify people with preserved rights, to assess their care needs and to make community care provision for them after the repeal of section 26A of the National Assistance Act 1948. Section 26A established the preserved rights scheme.
 Clause 49 requires local authorities to secure community care services for people with preserved rights. It also places an obligation on them to identify people with preserved rights and to carry out care assessments on them. As worded, the clause is linked to the requirement and responsibility to people to whom section 26A applied. However, subsection (1) repeals section 26A. That would mean that if, and when, the Bill received Royal Assent and came into force, section 26A would not apply to anyone. We do, of course, want local authorities to be under a duty to identify people with preserved rights and to make appropriate provision after the repeal of section 26A. That may be necessary where the details of someone with preserved rights reach the local authority's attention only after the system of preserved rights has ended. The amendments will ensure that local authorities remain under a duty to identify people with preserved rights and to make community care provision for them after the repeal of section 26A. 
 These amendments are purely technical and make sure that there are no loopholes that people under the preserved rights scheme might slip through. I hope that the Committee will be able to accept them. 
 Amendment agreed to.

Desmond Swayne: I beg to move amendment No. 314, in page 44, line 18, at end insert—
 `(8A) The relevant authority may by regulations prescribe that local authorities shall communicate such information as it shall prescribe concerning the effect of this section to persons who are likely to be qualifying persons on the appointed day, in such manner and at such time prior to the appointed day as it shall prescribe.'.
 I shall not detain the Committee on a clause that has received such a general welcome. However, there is an important issue. It is proper to remember that one of the principal reasons for which preserved rights were created in the first place was to provide an assurance to those already in care homes that they would be able to remain there. As the Minister has said, there will be a duty on the authorities to identify and to assess those with preserved rights. That assessment may give rise to a quite different—though desirable, I suppose—provision of care than they are currently enjoying. The Government's response to the royal commission on long-term care states at paragraph 2.27: 
 ``Some of the younger disabled people with preserved rights probably should not be in residential care at all.'' 
It goes on to outline quite desirable and proper alternatives to that. However, the paper continues, and observes in paragraph 2.30 that 
``the prospect of changes to both schemes also worries people.'' 
In paragraph 2.31, it states: 
 ``The Government will therefore issue guidance that people must not be moved against their will out of their existing care homes unless there is a compelling reason why they should move.'' 
Of course, there has to be some provision for that, but as the Government have acknowledged in their own paper, there is some anxiety. All that we seek is an an assurance from the Government that they will ensure that proper publicity and information is made available ahead of the implementation of those provisions to provide reassurance for those people who will be affected by those provisions.

John Hutton: I am grateful to the hon. Member for New Forest, West for the way in which he moved his amendment. That will allow me to reassure both him and the Committee not only about the reasons for making the changes, but also about the manner in which we will implement them.
 It has been widely recognised, by the royal commission and many others, including our own constituents, that the preserved rights scheme is a source of serious difficulties for many people in our country. First and foremost, it restricts a person's choice of accommodation to part III accommodation. For younger disabled people in particular, that is an unnecessary restriction. There are other ways, and other care settings, in which care can reasonably be provided. The preserved rights scheme does not allow that choice to be made. 
 There are also serious problems about the shortfall between the residential care that the preserved rights income support provides and the rate at which those care services are being challenged. That is causing serious difficulties for many thousands of people, particularly the elderly, who are experiencing real distress as a result. 
 The changes are being made for the right reasons. We are making the system better for people in long-term care, and we will not introduce those changes in a way that will disrupt the continuity and pattern of the provision of care for the elderly or for younger disabled people who currently receive the preserved rights income support. I understand why the hon. Gentleman has tabled the amendment, and I share his concern to ensure that people who are affected by the ending of the preserved rights scheme should be given as much information as possible about the impact of the change. 
 The hon. Gentleman courteously acknowledged that we have consulted extensively about the proposal and have tried all along to make sure that people understand what we are doing. We try to respond to the concerns that many people naturally feel if the pattern of funding for their residential care is altered. We have worked closely with the Department of Social Security to ensure a smooth transition to the new system. The DSS plans to notify people with preserved rights to benefits of the reasons for the change to their benefit payments, and to explain the local authority's involvement in, and future responsibility for, their care needs. The DSS plans to do that well in advance of the changes taking place. 
 Clause 49 allows for an approach to be made by local authorities to the people affected before the change takes place. That means that we shall expect local authorities to undertake care and financial assessments in many cases before the appointed date. As a result, a considerable number of people affected by the change will have had some personal contact with the local authority before the change takes place, and should be fully informed about how it will affect them. 
 In addition, we intend to issue guidance to local authorities to address the issue of how to prepare for the changes. The guidance will make clear to the local authorities their responsibility for ensuring that they provide an explanation about the impact of the change to those affected by it. I share the hon. Gentleman's concern, but hope that he will recognise that there is no need to regulate and that the point of concern, and issue of principle, that he has raised, are fully accepted by us. We intend to make sure that the changes operate smoothly and fairly.

Desmond Swayne: In view of the Minister's reassurance, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendments made: 
 No. 267, in page 44, leave out lines 28 and 29. 
 No. 268, in page 44, line 34, at end insert 
` ``the responsible authority'' shall be construed in accordance with subsection (2).'.—[Mr. Hutton.]
 Clause 49, as amended, ordered to stand part of the Bill.

Clause 50 - Preserved rights: disclosure of information

Amendments made: 
 No. 269, in page 44, line 35, leave out 
 `This section applies to any person in relevant premises who' 
and insert 
 `For the purposes of this section a ``claimant'' is— 
 (a) (in relation to any time before the appointed day) a person who is ordinarily resident in relevant premises and'. 
No. 270, in page 44, line 37, at end insert 
`, or 
 (b) (in relation to any later time) a person who fell within paragraph (a) immediately before that day.'.
 No. 271, in page 44, line 40, leave out 
`person to whom this section applies' and insert `claimant'. 
No. 272, in page 44, line 42, leave out 
`purposes connected with the performance of functions under section 49' 
and insert `qualifying purposes'. 
 No. 273, in page 44, line 45, at end insert— 
 `(2A) Where information relating to a claimant is supplied to any authority or person (``the recipient'') in accordance with subsection (2), the information may be supplied by the recipient, for qualifying purposes— 
 (a) to any local authority appearing to the recipient to be providing the claimant with community care services with respect to his accommodation; or 
 (b) to any person providing services to, or authorised to exercise functions of, any such local authority. 
 (2B) In subsections (2) and (2A) ``qualifying purposes'', in relation to information relating to a claimant, means— 
 (a) purposes connected with the performance of functions under section 49 in relation to the claimant, or 
 (b) other purposes connected with the termination of his preserved right in consequence of section 51(1), or 
 (c) (in subsection (2)) any further supply of the information under subsection (2A).'.
 No. 274, in page 45, line 2, after `(2)', insert `or (2A)'. 
 No. 275, in page 45, line 11, at beginning insert ```the appointed day'','.—[Mr. Hutton.] 
 Clause 50, as amended, ordered to stand part of the Bill. 
 Clause 51 ordered to stand part of the Bill.

Clause 52 - Disregarding of resources when determining need for residential accommodation

Paul Burstow: I beg to move amendment No. 293, in page 45, line 34, after `person', insert—
( ) a local authority shall not consider care and attention to be otherwise available if the person is not willing or not able to make their own arrangements and there is no one else both willing and able to do so on their behalf; and
( )'.
 The amendment aims to ensure that everyone who needs residential or nursing care in a residential setting has access to an assessment of his or her needs and can, if desired, avail himself or herself of the services of the local authority in negotiating a contract with the care home provider. The evidence that has been gathered in studies such as the Nuffield Foundation's report on capital offences and the Office of Fair Trading's 1998 report, ``Older People as Consumers in Care Homes'', shows that those with assets of more than £16,000, or in future probably £18,000 are being denied an assessment of their care needs, an appropriate package and an appropriate placement with the support of the local authority. 
 That has nothing to do with who pays, but everything to do with ensuring that the appropriate standard of care is provided and that everyone has access to a social services assessment of their needs. The amendment is reasonable, and I hope that if the Minister cannot accept its precise words, he can accept its spirit. I hope that he can give us some assurances that everyone is entitled to an assessment, regardless means, and that everyone is entitled to ask for support from a local authority to secure a contract for a placement in an appropriate care setting to meet those needs.

John Hutton: As the hon. Gentleman will be aware, councils are under a legal duty under the National Health Service and Community Care Act 1990 to assess the care needs of anyone who, in their view, may be in need of community care services. The law currently provides that where a person needs residential accommodation and care and attention are not otherwise available the local authority shall provide it. A person's ability to provide for himself is a relevant factor in determining whether to provide residential accommodation. Moreover, everyone should be advised about the type of care that he or she requires and informed about what services are available.
 I hope the hon. Gentleman will be reassured by the fact that councils may not refuse to undertake an assessment of care needs on the grounds that people have financial resources sufficient to meet the costs of their care or have care and attention otherwise available to them. The hon. Gentleman has raised an important point. The Department is seized of the issue. I do not know whether he was or still is a member of his local authority. 
Mr. Burstow indicated assent.

John Hutton: He is still a member of his authority. He may recall that in 1998 the Department issued circular 98/19 to all local authorities reminding them of their existing legal duty to make arrangements for residential accommodation for people who cannot make care arrangements themselves and who have no one to make them on their behalf. The law is quite clear on that and provides that where a person needs residential accommodation, and care and attention is not otherwise available, the local authority shall provide it. The ability of a person to provide for himself is a relevant factor to take into account in determining whether to provide residential accommodation.
 The Department has also reiterated that councils may not refuse to undertake an assessment of care needs for anyone on the grounds of the person's own financial resources. That is the position under section 47 of the National Health Service and Community Care Act 1990, which imposes an obligation to assess needs for services that a local authority is empowered to provide, where people should be advised about the type of care they require and informed about what services are available. With the greatest respect, I sympathise with the point the hon. Gentleman is making but ask him to withdraw his amendment.

Paul Burstow: I am grateful to the Minister for setting out the legal basis on which local authorities are meant to operate and to refresh the Committee's memory about recent guidelines and guidance . I am sure that it is all very helpful.
 The concern I have drawn to the Committee's attention through the amendment is that with all that good will and guidance, and even the statutory underpinning that the Minister has described, evidence has been provided—as recently as last year by the Nuffield Foundation—that breaches are occurring. 
 The question that I hope the Minister can address is, with all the guidance, what measures are being taken to ensure compliance? What steps are being taken in respect of SSI inspections, for example, to ensure that compliance is actually being achieved? We have beginnings of the new performance regime in terms of SSI inspectors going to see departments every year to talk about services. Is this issue being explored? It would have been useful for the Minister to have addressed that concern. Nevertheless, it is useful to have on the record the statutory position. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

John Maxton: With this it will be convenient to take the following:
 New clause 13—Mandatory disregard of property in certain circumstances— 
 `(1) The Secretary of State shall by regulations make provision to require local authorities to disregard the value of an individual's property in prescribed circumstances when that property is occupied in whole or in part, as his home, by a person or persons with whom that individual is associated. Associated persons shall have the same meaning as in section 62(3) of the Family Law Act 1996. 
 (2) Regulations under this section, may, in particular, make provision to specify the conditions which must be satisfied by the associated person before such a disregard is mandatory.'. 
New clause 14— Spouses not to be requested to pay for the care of their partner in residential or nursing home care — 
 `Sections 42 and 43 of the National Assistance Act 1948 shall cease to have effect.'.

Paul Burstow: The two new clauses form a useful way of dealing with issues concerning the rights of relatives and others who are currently residing in a property that is owned to someone who is about to go into care, who will then be subject to the rules for that property to be sold or to have a charge placed against it. It is about clarifying and widening the categories of person who would benefit from being able to retain an interest in the property through their residence while the owner is in care. That is essentially the purpose of the amendments.
 My reason for tabling them is based on work that has been undertaken by Age Concern which published a report last year entitled, ``All My Worldly Goods: A study of the operation of `liable relative rules' when a spouse goes into residential or nursing home care''. The research disturbingly revealed a wide variation in practice in interpreting and applying those rules and the apparent degree of uncertainty among financial assessors within local authorities in respect of applying those rules. 
 Although it might be appropriate to have a degree of difference in respect of discretionary charges for domiciliary and non-residential services, we feel that there should be greater clarity in respect of the rules on charging for a nationally arranged service, albeit one that is administered locally.

Simon Burns: In relation to new clause 13, will the hon. Gentleman kindly explain exactly how section 62(3) of the Family Law Act 1996 defines associated people?

Paul Burstow: I am happy to read into the record the relevant extract from 62(3) if the hon. Gentleman would find that helpful. It says:
``for the purpose of this part a person is associated with another person if— 
 (a) they are or have been married to each other; 
 (b) they are cohabitants or former cohabitants; 
 (c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder; 
 (d) they are relatives; 
 (e) they have agreed to marry one another (whether or not that agreement has been terminated) 
 (f) in relation to any child that they are both persons falling within sub section 4; or 
 (g) they are parties to the same family proceedings (other than proceedings under this part).'' 
That is the definition in the 1996 Act. We believe that it is appropriate to widen the provision to include someone's interest in a property.

Simon Burns: On a point of clarification, does that also include carers who may be living in the same house?

Paul Burstow: It does include carers. I am pleased to have offered that clarification. The amendments seek to elicit greater clarity from the Government on how the liable relative rule works, to ensure greater consistency in their application, and to widen the scope of mandatory disregards of residents' properties. I hope that the Minister will offer some encouraging words, so I wait with baited breath to hear him.

John Hutton: I may have some good news for the hon. Gentleman on new clause 14. New clause 13, however, would require the Secretary of State or the National Assembly for Wales to make regulations for local authorities to disregard property occupied by a person or persons with whom the resident is associated within the terms of section 62(3) of the Family Law Act 1996. The hon. Gentleman read out a long and interesting list of people so defined under that section.
 Most of the hon. Gentleman's categories are already covered by the mandatory disregards. I agree that one or two are not, but current regulations already require councils to disregard the value of a resident's property where it continues to be occupied by the resident spouse or partner, a relative who is 60 or over, another relative who is incapacitated or a child who is dependent on the resident who continues to live in the property. Through statutory guidance, councils also have the discretion to disregard property where it continues to be occupied by a third party not covered by the mandatory disregards. A procedure already exists to issue regulations about who should be disregarded for these purposes, and regulations offer the most appropriate means of dealing with the problem.

Simon Burns: Does not the list of mandatory disregards exclude children under 16 living in the house and looking after their elderly parents as carers? I hope that I have misunderstood the position, but would it not be better to treat them as a mandatory category rather than as cases covered by discretionary powers and regulations?

John Hutton: With respect to the hon. Gentleman, his memory is almost right. We must remember that there is a category of mandatory disregards, so there is no discretion to disregard relatives and associated persons. If a child is dependent on the resident who continues to live in the property, the mandatory disregard applies.

Paul Burstow: Does it apply to children under 16?

John Hutton: Yes, I believe so, but I shall check whether it is 16 or 18 and let the hon. Gentleman and the Committee know. The hon. Gentleman is right about carers, however, who are not covered by the mandatory disregards. A genuine issue is at stake here and we are reflecting further on it.

Philip Hammond: The Minister mentioned disregard with respect to a property occupied by more than one person, but is the whole value or a proportionate value of the property disregarded? Would it not be possible for another person to continue to live in the property while the local authority takes a charge on it under the procedure in clause 54?

John Hutton: My understanding is that the whole value of the property is disregarded, but I shall confirm that in a few moments: urgent advice is winging its way as I speak. If I am wrong, I shall correct the record as soon as possible.
 New clause 14 raises the important issue of the so-called liable relatives rule. The new clause would stop councils seeking further contributions to care costs from spouses beyond the costs that residents are fairly assessed to pay under the means test. The new clause has merit: I am aware of the difficulties created by the operation of the liable relatives rule. Additional distress can be caused to residents and their husbands or wives during an extremely difficult time. 
 I agree with the hon. Gentleman that many couples feel bewildered or angry when, despite the fact that their income and assets—including those that are jointly held—have been fairly and fully assessed by care managers, they are asked to contribute further to the costs of care. Correspondence to my Department and the excellent report published last year by Age Concern England highlighted the fact that not all care managers are as clued up about the liable relatives rule as they should be. Some bring considerable pressure to bear on spouses to make a contribution, while others go on fishing expeditions into spouses' financial affairs, causing considerable distress. The liable relatives rule is applied patchily across the country, and that is not acceptable either. Some councils do not seem eager to apply it, while a minority are very enthusiastic about it. 
 Despite those arguments, the amendments would require consequential amendments which the hon. Gentleman has not identified to other legislation—particularly the National Assistance Act 1948—and to other clauses of the Bill. It is important to look at the potential repercussions and the policy of other Government Departments, before taking further steps to change the liable relatives rule. 
 Although we cannot accept the amendment as it stands, the Government will consider its implications carefully, and if we consider it appropriate we will table an appropriate amendment on Report. In the light of my comments, I hope that the hon. Gentleman will withdraw his amendments.

Paul Burstow: I thank the Minister, and I shall beg leave of the Committee to withdraw the amendment.

John Maxton: Order. The new clauses have not been moved, although they would have been at the appropriate point, if there were to be a Division on them.
 Question put and agreed to. 
 Clause 52 ordered to stand part of the Bill.

Clause 53 - Funding by resident etc. of more expensive accommodation

Mr. Swayne 
 : I beg to move amendment No. 315 in page 46, line 13, at end insert— 
 `(2A) Nothing in this section shall prevent or preclude any local authority from meeting any costs which exceed the cost it would usually expect to pay in order to provide suitable Part III accommodation.'.
 At another hour there would have been a debate arising out of the questions that were prompted by this probing amendment, but that is not the case now. There is a key question, however. Are the provisions specifically limited to the examples in the explanatory note—those waiting for three-months disregard, or those expecting deferred payment arrangements as set out in clause 54. Are they the only ones who will be able to avail themselves of the provision of the clause? Would a resident who has no property—but who has more than £18,500 capital— be able to use that capital to top up their additional payments, if there was no third party? 
 Moving closer to amendment No. 315, if a resident has lived in a home for some time, having made their own arrangements and the costs are more than the local authority would ordinarily have been prepared to pay for someone with those assessed needs, what will happen when that person exhausts their funds and has to rely on the local authority? Would such a person be able to use their remaining resources to make up the difference, or would they to have to move? 
 The amendment raises the question of those who choose a home that costs more than the local authority's level of expected payments, and what happens to them when they run out of money and need help. The amendment would enable the local authority to continue to make those payments, if it so wishes. We see no reason why it should not be able to do so. It prompts a wider debate, surrounding the complex interaction between local authority fees and the fees set by homes. There is a body of evidence to suggest that homes do tend to charge self-funders more than local authority residents, but I will not go further down that road now.

John Hutton: The effect of the hon. Gentlemen's amendment would be to ensure that local authorities would meet a person's care needs, regardless of the cost. Some of his other points do not seem to relate to his amendment—he may have wanted to speak more widely about the purpose of the clause. Perhaps I should help him and his hon. Friends with that.
 The clause in no way removes or alters existing provisions, which require a council to meet a person's assessed care needs, even where that might mean providing residential or nursing home care that exceeds the local authority's usual standard rate. The clause, as will be specified in regulations, will ensure that people who avail themselves of the three-month property disregard or use a deferred payment arrangement can choose more expensive accommodation than the council would normally finance. That is sensible and fair, as such residents are to all intents and purposes self-funders who have the resources to pay for more expensive accommodation, should that be their choice. I do not believe that we should restrict people's choice to use their resources in that way if they consider it appropriate. They should be able to exercise choice over the care home that they will enter. For many, that will be their final home, and it should meet their needs and be to their liking. It is particularly important for councils to use their resources efficiently and fairly. 
 Councils currently consider and make placements with two important principles in mind. The first relates to the choice of accommodation, direction on which was issued to them in 1992. A key principle is that people seeking council support may enter care homes of their choice where the home meets their assessed needs, a vacancy exists and the fees are in line with what the council would normally expect to pay. 
 The second key principle concerns the financial assessment. Once a council has assessed someone in need of residential accommodation who qualifies for council support, it will undertake a financial assessment. That assessment will take full account of a person's assets and income and, according to national regulations and rules, determine how much he or she should pay towards the cost of their care. The nub of the second principle is that once a council has made a fair and full financial assessment, it cannot ask the resident for a further contribution. Residents are not allowed a top-up from income and assets that the means test has disregarded, and the council should make up any difference between the fees charged by the care home to meet individual assessments and what the user can contribute. 
 If a resident wishes to enter a care home with higher basic care costs than a council would normally contract for, because of extra facilities, he or she may not expect the council to pay the difference. Instead, the resident may be able to turn to a third party, sometimes a relative, to make up the difference. I am aware that not all residents have someone to turn to in such circumstances. 
 Because we introduced the three-month property disregard and the deferred payment scheme in the NHS plan, to which I shall come in a moment, we have reviewed the rules on top-ups. As I said, those who take advantage of the measures are to all intents and purposes self-funders with sufficient resources to pay for the care that they want and need, but for the duration of the three-month property disregard or the deferred payment scheme, they will technically be council-supported residents. As such, they will technically not be able to enter homes of their choice if the fees are greater than the council would usually pay. Residents are forbidden to make up the difference with income and assets disregarded by the means test. 
 The clause provides a clear legislative framework—to be clarified in regulations—to enable residents in such situations to top up their contributions to care fees if the fees are greater than those that the council would normally meet for someone with those needs. The clause also provides a clear framework for the current practice of third-party top-ups, which allow family members, charities and others to contribute to care costs and bridge the gap between the care home's fees and the council's standard rate. 
 I hope that I have reassured the hon. Member for New Forest, West that the clause does not remove or alter existing provisions, which require councils to meet a person's assessed care needs, even where that means providing residential or nursing home care that exceeds the local authority's standard rate for that care. Councils have a duty to pay for care, no matter its cost, if it is essential to meet assessed needs. The fact that the legislation will not allow for top-ups for any situation other than the three-month disregard and deferred payment scheme indicates that the Government recognise that reform in that area is difficult and sensitive and that we need to proceed carefully. 
 I hope that, having heard what I have had to say, the hon. Gentleman will withdraw the amendment. He has raised several issues that go wider than that but I have tried to reassure him about why we are changing the top-up rules. We intend to preserve and extend choice and to make sure that the new schemes are not frustrated or resisted by other rules relating to top-ups. We want the whole system to work effectively, and changing the rules on top-ups will encourage both those schemes.

Desmond Swayne: I welcome the Minister's helpful explanation of the clause, but I am not sure that I share his analysis of the amendment. He said that it would provide open-ended costs for the local authority. We believe that it would allow the authority to exercise a measure of discretion, where it wished to do so. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 53 ordered to stand part of the Bill.

Clause 54 - Power for local authorities to take charges on land instead of contributions

Paul Burstow: I beg to move amendment No. 289, in page 46, line 21, at end insert
`and
(c) that person has been informed in writing of the advisability of appropriate independent financial advice by a suitably qualified advisor,'.
 The amendment is simple. It would provide that, in setting up deferred payment arrangements and placing a charge on a property, which is a welcome development, a resident is made aware of and signposted towards independent financial advice to enable him to consider the pros and cons of such an arrangement before deciding to go down that path.

Philip Hammond: I sympathise with the hon. Gentleman's intentions, but it is difficult to understand what financial advice one would need when offered a zero interest loan.

Paul Burstow: I am grateful for that comment, because it brings me to one of the matters that I wanted to raise. There is a time limit of 28 days after the period for which no payment is due. I hope that the Minister will respond to the concern that 28 days is not an adequate period in which a property might be disposed of and that interest will consequently kick in and accrue quickly. For that reason in particular, one could argue that aspects of the way in which the measure is being implemented warrant a financial adviser giving a person independent financial advice about the arrangements that pertain under the clause.
 We want to clarify whether the Government have any intention of facilitating the provision of independent financial advice on such decisions at the relevant stage in a person's life. It will be helpful if the Minister describes what guidance will be issued to local authorities on how to assess the amount of a deferred payment when it falls due, because there are concerns about precisely what that will mean in practice. Again, a financial adviser might ensure that, when taking a decision about whether deferred payment is the right course of action, a person can take into account the guidance that I assume will be issued by the Department. 
 Who will pay for the legal charge? Will it be the local authority or the individual, by also attaching that cost to the property? Will it be paid for in another way? Those questions arise from the clause and it would be helpful if the Minister gave us some information about them.

John Hutton: I understand why the hon. Gentleman tabled the amendment, which would require local authorities to inform people in writing of the advisability of taking independent financial advice. The Department of Health already intends to provide councils with guidance on the operation of the deferred payment scheme. It is envisaged that the guidance will include the advice to councils that people who want to enter into a deferred payment arrangement should be encouraged to seek independent financial advice.

Paul Burstow: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Philip Hammond: I beg to move amendment No. 316, in page 46, line 36, after `authority', insert
`or such person as the authority shall nominate'.
 The amendment would write into the Bill the provision that the resident will grant to the authority or such person as the authority shall nominate a charge over the property. The purpose of this probing amendment is to find out from the Government how the arrangement will be financed. That is a sensible way of avoiding the trauma of selling a property during someone's lifetime, when it is evident that that lifetime will not be long. It may be better not to create that trauma and allow the property to be sold later, providing proper security for the local authority. However, such a charge on a property would not provide cash, and local authorities will be required to pay out hard cash to discharge their obligations. 
 Does the Minister propose that the Treasury should effectively underwrite the scheme so that local authorities are, in effect, in a neutral position? If that is not so, does he expect that local authorities might want to enter into arrangements with financial providers to take a charge on the property and advance money to the local authority against the accruing care home fees? Will the money come from the Treasury or from the local authority making arrangements with financial institutions? If it is the latter, would it not make sense to have a requirement in the Bill that the individual should, if required by the local authority, create a charge in favour of the institution that is funding the transaction? 
 My second question is about the revenue cost, given that there will be a zero interest charge. If the money is coming from the Treasury at zero interest, that question answers itself. If, however, it will come from a financial institution, how will the local authority recoup the cost of the transaction? Will that be made up to the local authority by the Minister's Department?

John Hutton: The hon. Gentleman has asked a couple of questions about the operations of the deferred payment arrangements, and I will try to deal with his concerns. The effect of his amendment would be that when a resident entered into a deferred payment agreement with a local authority, the local authority would be able to nominate another person— perhaps a private debt collector or a commercial loans company—to enter into the legal charge on its behalf. That would certainly relieve the local authority from carrying the debt for the duration of the charge.
 The purpose of the deferred payment scheme is to reassure people that they will not be forced into selling their homes during their lifetime to meet the cost of their care. There is a danger that the hon. Gentleman's amendment—he has moved it for fair reasons, and I do not criticise him—might add to the worries of older people and their families rather than reassuring them when they are considering a move into residential care. That could, conceivably, act as a deterrent to any vulnerable older person considering entering into a deferred payment arrangement. 
 In particular, people may fear that a private debt-collecting agency might be less than scrupulous in trying to recover the debt that results from the charge. I merely mention that, and do not want to make too great a play of it. The hon. Gentleman's amendment, far from reassuring older people, might undermine confidence in the scheme. 
 The hon. Gentleman asked a number of questions about how the scheme would be funded. We have tried to make it clear that we are providing a new ring-fenced grant to resource the scheme, with £15 million this year, £30 million next year and £40 million the year after for local authority resources. Local authorities will be able to use those resources for the up-front care costs associated with the person entering into care under the deferred payment arrangements. The scheme will be resourced through the ring-fenced grant, and the answer to the hon. Gentleman's question is that that will be resourced in the normal way, which he might describe as Treasury-financed. 
 The other point that I should bring to the hon. Gentleman's attention is that some councils already operate deferred payment arrangements, and do so from existing resources. There is nothing new in the idea, and we are just trying to extend access to these schemes in the way that we outlined in clause 54. 
 The zero rate of interest reflects the current position in relation to the loans, and we do not intend to change that. We want the schemes to be attractive and to reassure people that they will not be forced to sell their homes, and the zero rate of interest is reasonable for that purpose. The rate will ultimately be determined by local authority through the ring-fenced grant and financed in that way.

Philip Hammond: On the subject of the ring-fenced grant that will finance this, will the Minister clarify whether, when the money is recovered by the local authority, the authorities will make a repayment that will create a re-circulating pool of money?

John Hutton: Yes, that is how we see the scheme working. I should have made that clear, and apologise for not having done so.
 The hon. Member for Sutton and Cheam asked about 28 days. That is the current situation, but we will have another look at that to see whether that is reasonable. I will come back to him on that point.

Philip Hammond: It is slightly disingenuous of the Minister to suggest that responsible local authorities will be transacting with loan sharks and debt-collecting companies. I was thinking more of the Woolwich building society for example. The Minister's reassurances have rendered the amendment redundant, and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 54 ordered to stand part of the Bill.

Clause 55 - Cross-border placements

Philip Hammond: I beg to move amendment No. 317, in page 47, line 39, at end add—
 `(3) Regulations under this section may not treat any person differently from any other person by virtue of his place of birth or his place of residence prior to the time when he became subject to arrangements made under section 21 of the 1948 Act.'.
 I shall be brief although, if there were time, we could have a much longer debate. I do not want to rehearse our earlier discussion, although hon. Members will remember it. There is concern that if different arrangements are in place in Scotland, the Government may be tempted to issue regulations to try to prevent people who would normally be resident in England from availing themselves of the more generous arrangements that might be in place in Scotland. 
 The amendment would prevent the Government from discriminating against individuals, either by virtue of their place of birth or their place of residence immediately prior to their becoming subject to arrangements made under section 21 of the 1948 Act. If the Minister is not minded to accept the amendment, I should be grateful if he would reassure us that the Government will not issue regulations that discriminate between people from different parts of the United Kingdom, as was the case for payments for higher education in Scotland, in a way that would not be lawful if it were between people from the United Kingdom and people from another part of the European Union.

John Hutton: Clause 55 allows regulations to be made to enable local authorities in England and Wales to make and pay for residential care and nursing home placements in Scotland, Northern Ireland, the Channel Isles and the Isle of Man. Existing legislation does not allow them to do that. The amendment would ensure that the regulations were used to prevent local authorities from discriminating against someone on the grounds of place of birth or place of residence when they considered whether to make a cross-border placement.
 I fully understand the hon. Gentleman's sentiments. We expect local authorities to make decisions strictly on the basis of whether someone needs to move to be near family and friends, not on where they were born or where they have lived or are living. Councils in England will still need to comply with legislation deriving from sections 21, 24 and 26 of the National Assistance Act 1948 on ordinary residence when considering whether to move care home residents from their areas to other areas. After consulting interested parties, we intend to issue guidance to local authorities explaining how to make decisions on cross-border placements. We do not need, therefore, to specify such conditions in regulations. We will be able to do that under the clause as it stands.

Philip Hammond: That was as clear as mud to me. There is an important issue here in the light of our earlier debate about the devolved settlement and possible problems in that area. However, I sense that the mood of the Committee is not to debate that at length now. We should like to return to this on Report to discuss it a little more fully with the Minister. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 55 ordered to stand part of the Bill. 
 Clauses 56 to 58 ordered to stand part of the Bill. 
Further consideration adjourned.—[Mr. Jamieson.] 
 Adjourned accordingly at twelve minutes to Ten o'clock till Thursday 8 February at half-past Nine o'clock.